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As the decision of the First-tier Tribunal (made on 1 April 2016 under reference EH845/15/00030) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel for a complete reconsideration of the issues that are raised by the appeal in accordance with the analysis in my reasons.
This appeal came to the Upper Tribunal by way of permission given by the First-tier Tribunal. It was heard at an oral hearing on 17 November 2016. David Lawson of counsel appeared for the local authority. John Friel of counsel appeared for Theo, whose needs were the subject of the case. I am grateful to both counsel for their presentations to me, especially as I had stepped in to take the hearing at the last minute with no familiarity with the papers. I am also grateful to them for their written submissions following the hearing.
There was evidence provided in the papers before me that was not before the First-tier Tribunal. I could have taken that into account if I were re-making the decision, but I am not. I cannot take it into account to show an error in the First-tier Tribunal�s decision, as the evidence was not put to it. In the event, I did not read it. It may, of course, be put to the First-tier Tribunal for the rehearing.
This case concerns the education, health and care plan for Theo who was born on 13 October 1993. He has autistic spectrum disorder, attention deficit hyperactivity disorder, associated challenging behaviour, and anxiety issues. He also has a back problem. Theo is registered at a specialist independent college on a day placement, but his attendance has been patchy. He lives in a rented flat with domiciliary support provided by Brighton and Sussex Care Ltd (BASC).
Having heard the appeal, the tribunal set out five questions that it had to answer.
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